November 3, 2005

Nathan Newman at TPM Café wants to make the case against Alito out of Chittister, the Family and Medical Leave Act case. Newman is a lawyer, in fact he went to Yale Law School, so presumably he knows something about how legal analysis is done and the way Supreme Court cases bind lower court judges. But maybe he doesn't mind using his aura of expertise to sell a specious argument to serve a political goal. I won't assume he actually understands the cases Alito had to deal with in deciding Chittister. They are difficult, and you have to take the trouble to read them. (I have spent a lot of time with them and claim expertise based on this law review article and 20 years teaching in the relevant field of law. I explain Alito's Chittister decision here. ) But why should Newman bother to understand the cases and to treat Alito fairly, when it's so easy and exciting to demagogue and to say that Alito is hostile to this important federal statutory benefit? What more do you need to know than that the statute is good and Alito did something against it?

To build the case against Alito, we do need to document all the ways thsat Alito opposes the rights of the accused, threatens abortion rights, and endangers workers rights.

But we need at least one decision that encapsulates what's wrong with Alito's view of the law, unites the maximum voters against him, and divides the potential opposition.

And that case is Chittister v. Department of Community and Economic Development, the decision where Alito ruled that the Family and Medical Leave Act did not apply to millions of state employees across the country.

False. The FMLA would still apply to state employees. (The decision only prevented suits by individual state employees for retrospective relief -- such as backpay.) But nice to see you admit that you're all about building a case against the man and finding something you can use.

This was a decision that was overturned by the Supreme Court, in a decision written by Chief Justice Rehnquist.

Well, Rehnquist decided a different case, Hibbs, but that's just a careless error. Still, thanks for showing how little you care about accuracy as you mount your attack.

There is little question that the Family and Medical Leave Act is one of the popular laws passed in recent decades -- a lifesaver for many mothers and fathers who want to stay home with a newborn or a sick family member without fear of being fired from their job for taking that time off.

Yes, the law is popular. Nice grasp of the role of courts and the Constitution. The law is popular, so you should strain to find a way to leave it alone. After all, Rehnquist found a way. Of course, Rehnquist did not have to take so much trouble to follow Supreme Court cases. But down with Alito for respecting the case law. Because he's a bad, bad man. He went against a popular law. He wants mommies and daddies fired!

Opposition to Alito's decision is a unifier-- it unites feminists, oganized labor, public employees, and soccer Moms. And by alienating working mothers especially, who depend on FMLA leave, Chittister has the potential to deeply divide the Republican base.

Yes, fire them up. Who really cares about law and the courts? This is all about organizing the opposition. People will get really mad when they hear that Alito wants to fire mommies and daddies!

Other issues that motivate progressive activists-- Casey for abortion rights activists, Alito's deeply disturbing anti-union attacks or his disdain for criminal defendants -- will motivate key groups, but the question is how to we make the danger of Alito on the Supreme Court clear enough to swing voters that their Senators fear the backlash.

Politically, the pressures on parents in balancing work and family is overwhelming. That Alito would attack a common sense law like the Family and Medical Leave Act in the name of "states rights" will seem to most such voters as pure rightwing ideology. And it can be painted as exactly the judicial activism, the "legislating from the bench" that Bush claimed his judges would not engage in.

Yes, regular folks won't get the concept that courts apply law. What matters is what we can make seem like "pure rightwing ideology." Those dopey soccer moms will totally fall for this one.

If we want to encapsulate what the "federalism revolution" means, what the "Constitution in Exile" means for average families, it is this: ordinary laws enacted by democratic majorities will randomly be struck down in the name of rightwing ideology.

Randomly! Those rightwingers are just crazy. They might see a law and just shoot it down -- absurdly attempting to interpret legal texts -- even when the law is popular. And, no, don't bother me now about the way liberals care about some parts of the Constitution and might sometimes want a court to strike down a popular statute.

It's worth thinking about why Renhquist, the original architect of the federalism legal revolution, decided to uphold the Family and Medical Leave Act when it came before the Supreme Court. A pretty fair analysis is that, aside from the legal arguments, Rehnquist recognized that a decision against the Family Leave law would create such a backlash that it might endanger the whole legal movement in the long term.

Yes, and shame on Rehnquist then, right? Or if the case law was so terrible, it was up to the Supreme Court to change it. There was nothing Alito as a lower court judge could do to change it. The fact that Rehnquist changed it in the Supreme Court in no way showed that Alito should have or even could have changed it in the court of appeals. There is no basis for criticizing him for what was ordinary faithfulness to established law. (Sound like a concept you might want to rely on some time?)

So raising the profile of Chittister should be a key strategy, to raise that spectre of a shift of the Court not just to the right of O'Connor but to the right of Renhquist and to raise pressure on those swing Senators.

Sure, go ahead. Great idea. Teach the world that the Court is nothing more than a political game and the judges who attempt to follow the law are just dangerous, arbitrary fanatics. No chance you might care about the rule of law some day. Screw it! We can win a political battle.

It isn't even funny that you really have virtually no chance of defeating the nominee. Your abject disrespect for law is thoroughly disgusting. But thanks for posting your embarrassing strategy on a blog and for not noticing that there are other bloggers out there who know the legal details that you are counting on the soccer moms not understand or care about at all.

UPDATE: Welcome Instapundit readers. For other parts to my ongoing effort to stop the Chittister demagogery: Part 1, 2, and (dealing with Kos) Part 4.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.

The nature of the debate on Judge Alito is making the Miers strategy seem alot more sensible now.

The main lesson being that there is no such thing as an acceptable jurist if they have a record of decisions that shows they rule with the law as written rather than what would be the more politically acceptable choice.

The fact that Judge Alito has shown the proper respect for precedent and the rulings of the Supreme Court would suggest that Circuits (or circuses) like the Ninth will be in big trouble with Roberts/Scalia/Thomas/Alito (or Robliamasito?, hmmm, sounds tasty, I'd order it with cerveza) steering the Supreme Court towards textualism.

The big question being will the lower courts try and overwhelm them with volume and hope that a few progressively legislative-like court decisions slip by?

Or will they be responsible and actually do what their job description suggests they should do?

(and you know the opposition are hoping defenders of common sense like Prof. Althouse will be exhausted by the torrent of half-truths and outright lies and give up before Jan 9th)

Hard to fathom the depths that would have been reached had Judge Janice Rogers Brown been the choice.

Great post, Professor Althouse. Once more I curse the name of my ConLaw professor and hope his armpits are infested with the fleas of a thousand camels.

This is not surprising. I was talking recently with a friend who boldly admitted that he didn't like Alito because he ruled against the FMLA, and for machine guns, etc. I asked if he'd read the opinions, and which parts he disagreed with. He again boldly asserted that he didn't care about the reasoning, in fact, he would stipulate that it was sound reasoning. But he hated, hated, hated the results. And therefore he hated Alito.

I cannot identify with these people. They long for the day of the 9 Wise Philosopher Kings who rule us from On High, when they are not restrained by silly legislatures, "51-percentism", and a dead Constitution from creating a heaven on earth for us.

On a side note the Republicans have delayed the confirmation hearings to January 9th. Doesn't this seem to be a politically inept thing to do? The left has two months to do research on Alito, and if he is like most people he probably has something somewhere in his past that he prefers no one knows about. But Republican operatives are more politically savvy than I am, why have they delayed Alito's confirmation hearings? What are the Republicansup to?

First, let me say that I agree with much of what Anne said. She is much more knowledgeable in the field of sovereign immunity and FMLA. Much of the criticism of Alito's FMLA decision is misplaced for the reasons that Anne demonstrated.Nevertheless, it is worth pointing out that misplaced criticisms and oversimplified statements take place on both sides. For example, numerous journalists and bloggers have claimed that in 3 out of 4 abortion cases, Alito came down on pro-choice side. However, this is false, since two cases had only tangential relation to abortion (Medicaid funding (administrative law) and whether fetus is a human being), and in another case SCOTUS decided the almost identical case and so, Alito had no way of ruling otherwise (partial birth abortion).

It is also worth noting that in virtually all cases (although, there are exceptions to every rule), Alito came down on relatively conservative side: i.e., pro-government, pro-big business, anti-defendant, etc. Again, there are exceptions, but the trend is unmistakable.While Anne correctly claims that liberals occassionally want the Court to strike down a popular statute, it is almost always in the context of granting more rights to people or respecting unpopular beliefs (i.e, flag burning; establishment clause cases, etc) Occassionally, originalists, such as Scalia, join them. In contrast, conservatives (I use the term loosely) usually strike down (or want to strike down) statutes that give personal rights. It is an overgeneralization, perhaps, but I am convinced that my main point is valid.

So, with Alito, I am concerned not as much with Chittister or Casey, but rather with a broad pattern that strongly suggests that he'll end up as a very conservative and not at all libertarian judge. That's why I would like to see him defeated, based on my current knowledge. I am leaving open a possibility of changing my mind, however, if I see some more libertarian/pro-individual decisions by Alito. Yes, it is important to have a very bright and smart individual on the Court. But it is also important to ensure that brilliance and superb lawyerly skills are not used to erode important rights recognized by the law in the name of "textualism." "Following the rule of law" sounds great, but Bork and Scalia, and Thomas all believe they are or were following the rule of law. Whether we like it or not, political preferences color and shape the way judges "follow the law," especially "conservative" judges. Just check Bush v. Gore for proof.

Alas, the Court is now a political game for both sides, whether you like it or not. Senators Sessions and Cornyn stated that they would have opposed Justice Ruth Ginsburg for political reasons. Given that the Court makes so many policy decisions, it is not at all surprising that ideology now plays an important role in confirming judges.

Again, Anne, you're right (as far as I can tell) in your criticism of oversimplification and overpoliticization of confirmation of nominees to the Court. But while we should not oversimplify, we should not overlook important trends either. And the trend of most of the Alito's opinions that I am aware of is not reassuring.

I really hope that I am wrong, but I am afraid that a) Alito will be confirmed; b) he will be a very conservative judge without libertarian streaks. I can only hope that Alito is more moderate than most of his record shows. My faint hope rests on the Social Security case and on a couple of pro-immigrants' cases that he decided. But I don't know, even Bork had some relatively progressive outcomes in his stint as DC Circuit Appeals Court judge. So, it's a huge gamble to confirm Alito.Of course, most people on this blog want Alito to turn out to be very conservative, and they have many more reasons to be optimistic than I do.

The important thing is not if the *outcome* is conservative or liberal. The important thing is if he got the law correct.

I have been going through the Alito dissents, and am about halfway through them. I *am* noticing a unmistakeable pattern. In the vast majority of those that were appeals of a District Court ruling, he was voting to affirm the lower court's ruling.

Wait, that does not fit nicely into the conservative/liberal talking points box? Irrelevant. Sometimes, it is a mistake to distill things down in that way.

As for your talking points of what makes a conservative ("pro-big business", "pro-government", "anti-defendent")... Liberals should be doing anything but calling conservatives pro-government. Conservatives are not just pro-big business, we are pro-business because business and commerce are pro-people- earning-money- making-a-living- and-eating; and if liberal is the opposite of conservative, that implies... Similarly, if conservatives are "anti-defendent", that would make liberals "pro-criminal"? I think I'll take that exchange in the PR wars.

How about a better idea- lose the demagoguery. The politics in this country would be so much healthier if people did.

Or maybe, deep in your heart, you actually believe those shallow characterizations. If so, you might be out of your depth in a parking lot puddle. And that's sad.

Quxxo's post about poll ratings of the president seem irrelavent, since if the President were to resign, in all probability the veep would continue the process.

However, when I think of politicians and polls, all I can remember is the Governor of Texas from the film "best Little Whorehouse in Texas, who waited until the polls came out before making any decision.

The question I have is, why do you seem surprised about this? These tactics have been in the open for years. They were on full display during the filibusters of Circuit Court nominees.

Did people hold against them what they did to Miguel Estrada? Carolyn B. Kuhl? Charles Pickering? Nope.

Did people hold it against them when they did it to Pryor? Owen? Brown? People gave props to the "Gang of 14" who ended that, and immediately forgave the Democrats in the gang, as if they had not had any hand in doing it.

And what about Henry Saad, and Brett Kavanaugh, and Terrence Boyle?

Why wouldn't the Democrats employ such strategies? History has shown them that it works.

Here's what Chief Justice REhnquist actually wrote in Hibbs. FMLA passed muster because after it was enacted "... employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family caregiving, thereby reducing employers' incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes."

Ann thinks that's totally incoherent and insufficient. Plus, that it's bad to quote the actual text of the case rather than her law review analysis of it.

Is there an aspect of pragmatism in the law that goes beyond a rigid and doctrinaire application of black letter rules--you bet. Is that a bad thing? I don't think so. That's why the rigid right hated O'Connor above all: she was a seasoned lawyer and judge and very pragmatic in her approach to both the law and life. The tension between Alito's rigid and doctrinaire approach and O'Connor's pragmatism is at the heart of the debate over confirming Alito.

If the Supreme Court had adopted Alito's Chittister approach what remedies would be available to a state employee under the FMLA? I understand that it only dealt with retrospective relief, but what if a State had denied an otherwise permitted leave?

Mark: That was very well observed and well put. I care about the liberal decisions that enforce constitutional rights too, which is why I care about preserving the institution of the Supreme Court. I want worthy jurists, not people like Harriet Miers. I will defend a liberal President's worthy nominees in the same way. I agree that Alito will probably be on the conservative side. But he's a good judge and deserves respect and fairness.

Quxxo: I don't find the term "activist" helpful generally, but especially not here. My biggest problem with Hibbs is that it purported to follow an existing line of cases but did not. Kennedy, in dissent, points out the problems fairly well. Rehnquist preserves outcomes with other statutes like the ADA and the ADEA, because he doesn't change the legal doctrine and only purports to apply the existing doctrine.

Faithful Progressive, as in a previous post, quotes a block of Rehnquistian text. Rehnquist deviates from a line of prior cases. If you don't already understand those other cases -- cases Alito was bound by -- you won't be able to perceive the deviation.

Jim: The employee could get prospective relief like reinstatement but not backpay, unless the state has consented to suit.

"But it is also important to ensure that brilliance and superb lawyerly skills are not used to erode important rights recognized by the law in the name of 'textualism.' 'Following the rule of law' sounds great, but Bork and Scalia, and Thomas all believe they are or were following the rule of law. Whether we like it or not, political preferences color and shape the way judges 'follow the law,' especially 'conservative' judges. Just check Bush v. Gore for proof."

That analysis reflects the core of the disagreement between "conservatives" and "liberals" with respect to the role of the courts. I have to ask how correct is it, really, that "brilliance and superb lawyerly skills are not used to erode important rights recognized by the law"? Conservatives frequently believe that such rights, which typically in substance are a finding by the Supreme Court that the Constution denies states and/or the federal goverment the power to regulate certain conduct, were in fact "made up" by the Court. Many conservatives, while agreeing with the policy preference embodied by the "finding" of such rights, believe sincerely that the process of implementing such rights, which process is described clearly in the Constitution and its enabling legislation, was hijacked by such "findings." The erosion conservatives seem to want is intended to try to restore the process, not necessarily to take away the substantive rights in question.

I agree almost entirely with the premise that you have to analyze Alito's decisions based on the precedent (and legislative history) he was faced with when he was writing his opinion and/or dissent. However, politicizing the affirmation process is not a one-party game.

Finally, in your opinions, is there any legitimate political or ideological basis to oppose a nominee? I imagine one could theoretically find a judge who faithfully applied the law as an appellate judge but personally was a Nazi and argued that s/he wished s/he did not have to apply such bad law; however, the reality is that the Democrats are faced with the conundrum of really wanting to oppose a nominee who is qualified, primarily due to their fear that he will overrule precedent they (and the majority of the public) feel is soundly based on the right of privacy located in the emanations and penumbra of enumerated constitutional rights (snicker, I know).

Sean: That's exactly why I used the word "presumably." Newman exudes the attitude that law is nothing but politics. This is where you can see the difference between liberals and lefties. I doubt if that's the message most Yale lawprofs mean to send, but it's quite easy for law students to jump ahead to that conclusion and then feel they are quite knowing.